The English judiciary

The 21st century, in which we are living now, differs greatly from the age that precedes it. Everyday we can see new and better advancements in technologies that affect, reshape and improve our lives, as well as our communication with the rest of the world. The society of the UK has also become drastically different due to the increased number of multi-racial communities developing within the UK. With such momentous changes occurring, the English legal systems and judicial authorities are presented with problems which they have never faced before.

Therein, how far is the English judiciary prepared to face the complexities of the 21st century? Presently, we can already witness the changes of laws and the introduction of new ones that respond to the new advancement in technologies. For example, the maxim in the field of land law saying that the "owner of a land is presumed to own up to the sky and down to the center of the earth", in theory would mean that modern aircraft flying over a person's land should be held liable for trespass.

Clearly, when the maxim was laid down, there were no such things as aircraft, and when aircraft was developed, it conflicted with the maxim and posed possible difficulties for air travel. Parliament recognized this problem, and created the Civil Aviation Act 1982 to address the issue. Other modern day issues include cyber and cloning technologies, both being bases for new computer based crimes such as hacking and moral degeneration, but already regulated by new laws such as the Human Rights Act 1998.

All these show that Parliament is aware of the changes and are prepared to face them. However the same may not be said for the English judiciary in light of the various changes occurring in society. The position of women has always been unfair in Britain until the mid 20th century. Before that, women were regarded as the possession of men quite literally, in that men could do anything they want to their wives or daughters. Marriages were usually arranged for women even when they were unwilling, and there were even cases of women being sold by their husbands.

The author Michael Henchard knew of this and put this fact in the beginning of his 1886 book The Mayor of Casterbridge, which had a scene showing the auction of a woman by her husband for five guineas. A review of women's rights in the UK shows that it was not until 1857 that women could divorce their husband if cruelly treated (but not for adultery, although their husband could divorce them for adultery), not until 1882 that a wife could own property, and (more importantly) not until 1884 that a wife ceased to be the property of her husband.

However, women were only truly, though not fully, emancipated after the First World War of 1914-18, in which they played a great part in the home front, in that they finally obtained the right to vote. It took almost 60 years since the first reform for women in 1839 for them to reach this stage. From these facts we can observe the underlying strand of sexist attitudes in British society, which although reformed or in the process of reforming were done with reluctance.

Our present English judges are typically males of Anglo-Saxon origins, but most importantly, they are usually born in the 1920's and 1930's (for example Lord Woolf and Lord Phillips), the age when women were still struggling to gain their rights. There is always the danger that the judges might still hold on to the conservative values of male superiority and dominance to the extent that their decisions are clouded and biased. Cases such as McCarthy v Wendy Smith, concerning wage disputes on the basis of gender, goes to show how even in modern times women were still deprived of equality.

In the case, the plaintiff Wendy Smith tried to sue her employer for not giving the same pay as other male workers and almost failed had it not been for the European Union provision of Article 119. One example of conservative judgements by old judges in new times is the issue of marital rape. For years women have failed to obtain justice in the courts when they tried to sue their husbands for raping them, because the judges involved in the trial still held on to the conservative view that women were the chattels of men though they justified that marriages gave the parties implied consent for such acts.

It was not until the landmark case of R v R (1992) that the courts finally held that marital rape was unacceptable. Superficially, it seems that the English judiciary are flexible enough to face the needs of women in an age where both men and women are equal. However, one must still note that it took 153 years for the English judiciary to change their views on this matter, after the first reform for women in 1839, and that judges still hold conservative views regarding women.